US Workplace Safety Standards

Imagine that a New Zealand business’s US subsidiary has been sued in the United States. One of its customer’s employees was injured by its operations on the job site. The CEO of the subsidiary has been placed on the witness stand and is being grilled by the plaintiff’s attorney as to why business had substandard safety protocols in place to prevent injuries to third-parties. When the CEO answers honestly that the subsidiary does not have any safety programs in place for its US operation, the jury begins to consider placing a punitive award against it for this failure. It’s a nightmare scenario, and one that is faced all the time by US businesses that have been sued when a personal injury occurs.

As is well understood by most Kiwis, the United States allows lawsuits for personal injury and does not have an ACC system. This means that one is exposed to this sort of litigation while doing business in the United States. While insurance policies may cover most personal injury claims made against one’s business in the US, it is best to avoid a finding of negligence against the business in a US court because the business has not taken any steps to mitigate the risk of personal injury from its operations. In order to do this, one must operate one’s business in the US under strict risk mitigation guidelines and standards which includes a US safety program. Further, as indicated above, the lack of a safety program is often used by plaintiff’s attorneys and juries as a basis for finding punitive damages.

It is important to remember that safety standards in the US and in New Zealand are different to a degree, as in the US the safety standards are thoroughly fleshed out, litigated, and legislated. The general work place safety guidelines are established by the federal Occupational Safety and Health Administration (“OSHA”). However, in US negligence law, these guidelines only serve as a minimum standard. There are countless cases where a business has been found negligent in causing a personal injury even when the OSHA standard has been strictly followed. This has led to the implementation of industry wide safety standards which exceed the minimum standards set by OSHA regulations.

Thus, it is important to remember that one must conduct one’s operations in the United States under US standards. A key defensive action a company can take in this regard is setting up an internal safety program which (1) ensures compliance with OSHA standards; (2) trains employees on the state of the art industry safety standards; (3) ensures that all of the company’s business equipment is up to date; and (4) ensures that there is a qualified employee in charge of inspecting all work sites for safety standard violations. These sorts of safety programs can be designed through professional third-party safety consultants and can be implemented through strict safety policies drafted by US counsel.

After reading this, one may be thinking that your operations in the US only involve work in an office and so this scenario cannot apply. Yet, there are any numbers of scenarios where non-industrial operations might lead to a personal injury which either deeply injures your reputation in the United States or exposes you to a punitive damages award which is not covered by your insurance policy. Further, there are OSHA standards which apply to general office work places as well as in the industrial setting. It is important to familiarize yourself with these standards by looking through the OSHA regulations at www.osha.gov.

In the end, it is a matter of genuinely analyzing the safety issues faced by your US workers and third-parties or customers on your business premises. By taking these steps and issuing written safety policies which address any safety issues that can be reasonably identified, a Kiwi business will have taken a major step in avoiding potential injuries and have insulated the business against a punitive damage award should there be an injury down the line.

- Zachary D. Norris, JD, LL.M. and Ada Echetebu, JD, LL.M.

*This article is for general informational purposes only and does not constitute legal advice, nor should it be construed as constituting any legal advice from Norris Echetebu Law, The Norris Law Firm or any of its affiliated lawyers. For specific analysis of your US legal issues, please contact the attorneys at Norris Echetebu Law at +64 (0)9-889-2602 or visit us on the web at http://nz-uslegal.co.nz/